United States District Court, S.D. Ohio, Eastern Division, Columbus
In re OHIO EXECUTION PROTOCOL LITIGATION, This Report relates to all Plaintiffs Except Raymond Tibbetts and Robert Van Hook
A. Sargus, Jr. Chief Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
DEFENDANTS' MOTION TO DISMISS THE FOURTH AMENDED OMNIBUS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
capital § 1983 case is before the Court on Objections by
Defendants (ECF No. 1450) and by Plaintiffs (ECF No. 1459) to
the Magistrate Judge's Report and Recommendations
(“Report, ” ECF No. 1429) recommending a
disposition of Defendants' Motion to Dismiss the Fourth
Amended Omnibus Complaint (ECF No. 1379). Plaintiffs have
responded to Defendants' Objections (ECF No. 1457),
Defendants have responded to Plaintiffs' Objections (ECF
No. 1562), and Chief Judge Sargus has recommitted the matter
for reconsideration in light of the Objections (ECF No.
parties do not object to the Report's statement of the
standard of review for motions to dismiss under either
Fed.R.Civ.P. 12(b)(1) or 12(b)(6), although at several points
Plaintiffs' object to how the Twombly/Iqbal
standard is applied. The parties also correctly state that
review of a Magistrate Judge's recommendation on a
dispositive motion, such as the instant Motion to Dismiss, is
for clear error as to facts and de novo as to the
Cause of Action: Access to Court
their Third Cause of Action, Plaintiffs complain of
limitations on their ability to consult with counsel and
counsel's ability to communicate with the courts or other
relevant authorities, particularly the Governor, during the
course of an execution (Fourth Amended Omnibus Complaint
(“4AOC”), ECF No. 1252, PageID 45728-35,
¶¶ 1295-1328). Defendants sought dismissal on the
basis of Judge Frost's decision in Cooey v.
Strickland, 2011 U.S. Dist. LEXIS 8336, *39 (S.D. Ohio
Jan. 29, 2011). The Report concluded that Judge Frost's
decision was based on the then-existing record on access and
that telephone access had been changed since then, but
without development of an adequate record as yet. (ECF No.
1429, PageID 55227.)
their Objections, Defendants again rely on Judge Frost's
January 2011 decision cited above and the Magistrate
Judge's Decision of November 14, 2017, denying leave to
amend to add a new access claim to the claims of
then-Plaintiff Alva Campbell, who was set to be executed the
next day (ECF No. 1375). The proposed amendment would have
addressed changes in access implemented after the Gary Otte
execution, but before the attempted Campbell execution. The
Magistrate Judge denied the amendment because the access
being provided after the changes was still more than the
access Judge Frost found to be constitutional. Defendants
rely on the logic of this decision.
Plaintiffs point out in response, Judge Frost's January
2011 summary judgment decision on the basis of the record
then before him is not inconsistent with his prior decision
that Plaintiffs' access claims did state a claim upon
which relief could be granted, that is, that they survived
the Rule 12(b)(6) test even if ultimately they could not pass
the Rule 56 test. Plaintiffs also note that the Magistrate
Judge's November 14, 2017, decision was, as it states on
its face, issued in the haste necessary when a motion is made
within twenty-four hours of a scheduled execution.
therefore again respectfully recommended that the Motion to
Dismiss be denied as to the Third Cause of Action.
Cause of Action: Equal Protection Violations
their Fourth Cause of Action, Plaintiffs allege that they
have been or will be treated differently from other similarly
situated individuals in violation of the Equal Protection
Clause of the Fourteenth Amendment (4AOC, ECF No. 1252,
PageID 45735-78, ¶¶ 1329-1495). This Cause of
Action comprises eighteen sub-claims, set out verbatim in the
Report (ECF No. 1429, PageID 55228-30) which recommends
dismissing all of the sub-claims except sub-claims A.1, A.10,
B.1, and B.8.
Report concluded that while Sub-claim A.1 does not currently
plead a threatened deviation from the Execution Protocol, it
pleads “an equal protection theory which has been
accepted by this Court in the past and resulted in the
issuance of preliminary injunctive relief, to wit, that
deviations from at least some provisions of the Execution
Protocol burden an inmate's right to be free of cruel and
unusual punishment.” (Report, ECF No. 1429, PageID
55244.) Defendants object that the pleading is too
speculative and the Court has not found an equal protection
violation on this theory since 2012 (Objections, ECF No.
1450, PageID 55398). Plaintiffs respond that they obtained
relief on this theory in this case in the past (Response, ECF
No. 1457, PageID 55427-31).
current standard for evaluating whether a complaint states a
claim turns on plausibility. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Doe v. Miami
University, 882 F.3d 579 (6th Cir. 2018),
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
in turn quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Given that some Plaintiffs have
obtained injunctive relief from this Court under this theory
but on the facts that existed at the time of their imminent
executions, it is not implausible that similar circumstances
might be presented with future executions. In this sense,
plausibility is about possible future facts. The Court could,
therefore, dismiss Sub-claim A-1 for lack of present facts
and then allow amendment if the facts change. The Magistrate
Judge believes the better course is to leave Sub-claim A-1
stand as pleading an appropriate legal theory without
appearing to repudiate it by dismissal at this stage.
this sub-claim, the Report reads:
In their tenth Equal Protection [burden on fundamental
rights] sub-claim, Plaintiffs contend that the removal of
required drug concentrations from the Execution Protocol
violates their Equal Protection rights.
Although that amendment to the Protocol precedes the last
three preliminary injunction hearings in this case, the Court
has not yet heard any evidence in support of this claim. It
is not unconstitutional to amend the Execution Protocol, but
it is at least conceivable that this particular amendment
might be shown to have reduced the safeguards of
Plaintiffs' Eighth Amendment rights. The Motion to
Dismiss sub-claim 10 should be denied.
(Report, ECF No. 1429, PageID 55251.)
object essentially on the same basis as they objected on
sub-claim A-1, to wit, that the sub-claim is “premised
on [a] mere possibility of speculative intentional action and
injury.” (ECF No. 1450, PageID 55399.) Not so. Removal
of the required drug concentrations from the Execution
Protocol is undoubtedly an intentional action by Defendants:
the Protocol did not amend itself. The question is the effect
of that amendment. Defendants emphasize what the Report
noted, to wit, that there has been no evidence on this claim
presented in the three preliminary injunction hearings held
since the amendment. But a preliminary injunction hearing is
not a trial on all issues. If at the time of summary judgment
practice the Plaintiffs have no evidence to support this
claim, it will be time enough for dismissal.
the first of eight equal protection sub- claims grounded in
the class-of-one theory. The Report found that, as of yet,
Defendants have not made or threatened any arbitrary
classification of any one of the Plaintiffs that would
support relief on that theory (ECF No. 1429, PageID 55253).
Nonetheless, the Magistrate Judge recommended keeping this
sub-claim in the Fourth Amended Omnibus Complaint on the same
theory as sub-claim A-1 with the caveat “that any
particular Plaintiff will need to amend or supplement his
individual complaint if he is threatened with particular
deviations from the Execution Protocol at the time his
execution becomes imminent.” Id. at PageID
object that Plaintiffs have not in fact pleaded any
actionable arbitrary classification. While that is true, it
is the law of the case and consistent with equal protection
theory generally that a class-of-one claim is cognizable in a
§ 1983 case. Plaintiffs' position on this sub-claim
is less tenable than their position on sub-claim A-1 because
there has been relief granted on that theory
(“deviation from the Protocol”) in the past,
whereas no relief has been granted in this case on the
class-of-one theory. Nevertheless, the Magistrate Judge
adheres to his prior recommendation because the theory is
sound if facts are eventually pleaded to support such a claim
Report recommended allowing sub-claim B-8 (removal of
required drug concentrations) to stand on the same basis as
sub-claim A-10 (ECF No. 1429, PageID 55255). Here again there
has been no evidence yet presented to suggest that the
removal of the concentrations was arbitrarily directed at any
one Plaintiff and the generality of the amendment to remove
the concentrations cuts strongly against that claim.
Therefore, sub-claim B-8 is less plausible than sub-claim
A-10. However, there is no prejudice to Defendants in
allowing this claim to be tested in summary judgment rather
than on a motion to dismiss.
Cause of Action: Deprivation of State-Created Rights Without
their Second Cause of Action Plaintiffs assert they have
state-created life, liberty, and property interests created
by the Ohio execution statute (Ohio Revised Code §
2949.22(A)) and the Ohio Execution Protocol (ODRC Policy
01-COM-11) which are protected by the Fourteenth Amendment
Due Process Clause. (4AOC, ECF No. 1252, PageID 45722-28,
Report (ECF No. 1429, PageID 55226) recommended dismissing
the Second Cause of Action on the basis of Cooey (Biros)
v. Strickland, 589 F.3d 210, 234 (6th Cir.
2009), followed by Judge Frost in Cooey (Henderson) v.
Strickland, 2010 U.S. Dist. LEXIS 81841 (S.D. Ohio Aug.
12, 2010), as well as the rationale given by the undersigned
in In re: Ohio Execution Protocol Litig. (Tibbetts &
Otte), 2017 U.S. Dist. LEXIS 107468 (S.D. Ohio July 12,
2017), and In re: Ohio Execution Protocol Litig.
(Campbell), 2017 WL 3479589 (S.D. Ohio Aug. 14, 2017).
concede Cooey (Biros) is binding precedent as to the
execution statute, but object to preserve their right to
appeal because they believe it was wrongly decided
(Objections, ECF No. 1459, PageID 55448).
Plaintiffs' claim of Due Process rights protected by the
Execution Protocol, the Magistrate Judge also relied on
Town of Castle Rock v. Gonzales, 545 U.S. 748
(2005), to hold that the right to a “humane and
dignified execution” was not a state-created property
right protected by the Fourteenth Amendment because it had no
“ascertainable monetary value.” Plaintiffs object
that this “ascertainable monetary value”
criterion for a state-created property interest is just a
“passing reference, ” and not a
“holding.” (Objections, ECF No. 1459, PageID
Castle Rock, the Supreme Court granted certiorari to
review a Tenth Circuit decision which had (1) found a mother
had a state-created property interest in the enforcement of a
restraining order against the father of her children which
(2) was protected by the Due Process Clause and therefore
actionable under 42 U.S.C. § 1983. Justice Scalia's
opinion makes clear that only a property interest, not a life
or liberty interest, was in issue. 545 U.S. at 756. The Court
held that the provisions of Colorado law relied on by the
plaintiff did not “truly [make] enforcement of
restraining orders mandatory” because police
officer discretion often coexists with statutory language
that is apparently mandatory. E.g. by use of the word
“shall”. Id. at 760.
from plaintiff's lack of entitlement to enforcement, the
Court also held that such an entitlement, if it existed,
would not be a property interest:
Even if we were to think otherwise concerning the creation of
an entitlement by Colorado, it is by no means clear that an
individual entitlement to enforcement of a restraining order
could constitute a "property" interest for purposes
of the Due Process Clause. Such a right would not, of course,
resemble any traditional conception of property. Although
that alone does not disqualify it from due process
protection, as [Board of Regents of State Colleges
v.] Roth, [408 U.S. 565 (1972)] and its progeny
show, the right to have a restraining order enforced does not
"have some ascertainable monetary value, " as even
our "Roth-type property-as-entitlement"
cases have implicitly required. Merrill, The Landscape of
Constitutional Property, 86 Va.L.Rev. 885, 964 (2000).
Perhaps most radically, the alleged property interest here
arises incidentally, not out of some new species of
government benefit or service, but out of a function that
government actors have always performed--to wit, arresting
people who they have probable cause to believe have committed
a criminal offense.
Id. at 766-67.
judicial officer, the language in the quoted paragraph reads
like an alternative holding, and not “dictum” or
a “passing reference.” Having argued that the
Magistrate Judge read Castle Rock too broadly,
Plaintiffs then assert two ways in which they say Castle
Rock supports their position. First, they say, the
Supreme Court found that the benefit at issue there -
enforcement of a restraining order - was not a property
interest because it was subject to police officer discretion.
Here, however, the obligation to perform executions in a
“professional, humane, sensitive, and dignified”
manner is made mandatory by the use of the word
“shall” in the Execution Protocol. But the same was
true of the statute at issue in Castle Rock and the
Supreme Court found that was not controlling. 545 U.S. at
761. As Defendants note, the Ohio courts have held that the
use of “shall” in prison regulations does not
confer rights on inmates. State ex rel. Larkins v.
Wilkinson, 79 Ohio St.3d 477, 479 (1997); State ex
rel. Shepherd v. Croft, 2010-Ohio-258 (10th
Dist. Jan. 28, 2010).
Plaintiffs argue that in Castle Rock “the
alleged interest was not a direct benefit to the individual
but rather an indirect benefit arising out of governmental
action directed at a third party.” (Objections, ECF No.
1459, PageID 55450.) Here, they say, the requirement of
conducting an execution in a professional, humane, sensitive,
and dignified manner “has only one direct beneficiary:
the condemned prisoner himself.” Id. at PageID
55450-51. Not so. All persons involved with an execution
benefit from having it performed in the described manner.
Just as there is a benefit to the general public in having
the law enforced as in the Castle Rock situation, so
to there is a benefit to the public in having executions
performed in a professional, humane, sensitive, and dignified
object that the Magistrate Judge made a distinction between
“execution processes” and the execution itself.
The Magistrate Judge is unaware of having suggested such a
reconsidered the matter in light of the Objections, the
Magistrate Judge again concludes the Second Cause of Action
should be dismissed for failure to state a claim upon which
relief can be granted under 42 U.S.C. § 1983.
Cause of Action: Equal Protection Violations
their Fourth Cause of Action, Plaintiffs claim Defendants
have violated or will violate their Fourteenth Amendment
right to equal protection of the laws in eighteen different
ways, pleaded in eighteen sub-claims. Plaintiffs make ten
claims that their fundamental rights under the Eighth
Amendment are being or will be burdened (Claims A.1 through
A.10) and eight class-of-one claims (Claims B.1 through B.8).
The Report's failure to recommend dismissal of four of
those sub-claims is dealt with above under Defendants'
Objections; the remainder are dealt with here.
General Objections to the Report's Equal Protection
Report contains a lengthy section analyzing the equal
protection law of this case, incorporating the parallel
analysis in In re: Ohio Execution Protocol Litig.
(Campbell & Tibbetts), 2017 U.S. Dist. LEXIS 182406,
2017 WL 5020138 (S.D. Ohio Nov. 3, 2017) (ECF No. 1429,
PageID 55232-42). Although Campbell and Tibbetts appealed,
they raised no argument about this Court's denial of
their equal protection claims, and the Sixth Circuit affirmed
this Court's decision. In re: Ohio Execution Protocol
Litig. (Campbell & Tibbetts), 881 F.3d 447
(6th Cir. 2018). The Report concluded:
“[t]hus this Court's equal protection analysis in
Campbell & Tibbetts, supra, has now become part
of the law of this case without disturbance by the Sixth
Circuit.” (ECF No. 1429, PageID 55241.)
Objections to this analysis comprise fifteen pages of their
Objections (ECF No. 1459, PageID 55454-68). Of their failure
to appeal from the dismissal of these claims in Campbell
& Tibbetts, they say nothing.
considered these general objections, the Magistrate Judge
remains persuaded that rulings on the instant Motion should
consistent with Judge Frost's decisions in Wiles,
Hartman, and Phillips, to wit, (1) Eighth
Amendment and Equal Protection analyses are analytically
distinct; (2) intentional state action in connection with an
execution which burdens an inmate's fundamental Eighth
Amendment right by increasing the risk that he will suffer
severe pain and needless suffering is actionable under the
Equal Protection Clause but (3) not every
“deviation” from the Execution Protocol increases
Therefore, to prove an Equal Protection violation, Plaintiffs
must show an intentional state action (action properly
attributable to the State under Monell [v. New
York City Dept. of Social Services, 436 U.S. 658 (1978),
] which treats one death row inmate disparately from others
and burdens that inmate's Eighth Amendment right by
increasing the risk he will suffer severe pain and needless
In re: Ohio Execution Protocol Litig. (Campbell &
Tibbetts), 2017 WL 5020138 at *27 (S.D. Ohio Nov. 3,
Plaintiffs have amply proven, an almost endless stream of
words can be put on paper arguing the content of the law of
this case as garnered from prior opinions. However,
discerning the law of the case is only part of our duty.
Judge Frost always reminded the parties that decisions on
preliminary injunction motions were not final. Ultimately we
must apply our best present understanding what the Equal
Protection Clause requires. That said, the Magistrate Judge
adheres to the analysis of equal protection law in general
given in the Report.
A.2: Deviations from Ohio's Execution Statute
their second burden-on-fundamental-rights sub-claim,
Plaintiffs assert that Ohio's expected deviations from
its execution statute, Ohio Revised Code § 2949.22(A),
will burden their fundamental Eighth Amendment right to be
free from cruel and unusual punishment. The Report recommends
dismissal of sub-claim A.2 because it attempts to
constitutionalize the statute and because it hypothesizes
various ways in which Ohio might violate the statute without
plausibly alleging facts in support of those claims.
Report notes the long-standing principle that
“[f]ailure to abide by state law is not itself a
constitutional violation.” (ECF No. 1429, PageID 55242,
citing Roberts v. City of Troy, 773 F.2d 720
(6th Cir. 1985), and other cases). Plaintiffs
offer no objection to that general proposition.
on that principle, the Report concluded the Equal Protection
Clause did not constitutionalize Ohio Revised Code §
2949.22(A)'s prescription of a quick and painless
execution. Plaintiffs object that “the statute itself
implicates Plaintiffs' Eighth Amendment fundamental
rights by setting out the requirements for how they are to be
executed; accordingly, applying the statute disparately
burdens those fundamental rights by removing the protections
that are included in the statute to make it Eighth Amendment
compliant.” (ECF No. 1459, PageID 55469.) This is
nothing more than an argument that the Equal Protection
Clause constitutionalizes the Ohio execution statute. But
there is no Eighth Amendment right to a painless execution.
Glossip v. Gross, 576 U.S.___, 135 S.Ct. 2726, 192
L.Ed.2d 761 (2015); Fears v. Morgan (In re: Ohio
Execution Protocol), 860 F.3d 881 (6th Cir.
Report concluded ¶¶ 1377 and 1378 did not state a
because there is no threat of Defendants “failing to
continue application of the lethal injection drug(s) until a
Plaintiff is dead” or of “failing to administer a
sufficient dosage of the lethal injection drug(s).”
That is to say, the Defendants have not expressly threatened
either of these courses of conduct, nor have they engaged in
these practices in the past so as to have made an implicit
threat of repeating them.
(ECF No. 1429, PageID 55245.)
Objections note they alleged the “Defendants failed to
administer the required dosages of drugs during the execution
of Joseph Clark” and the drugs administered to Dennis
McGuire (10 mg.of midazolam and 40 mg of hydromorphone) did
not quickly and painlessly cause death (Objections, ECF No.
the Fourth Amended Omnibus Complaint does make these
allegations, it is not plausible that they will be repeated.
The drug not administered in sufficient dosage in the Clark
case was sodium thiopental which is no longer available to be
used in executions. A major part of the problem with the
Clark execution was the failure to establish and maintain two
intravenous lines and Director Mohr has testified he would
not permit an execution to proceed in the future without two
lines. The protocol involved in the McGuire execution has
Fourth Amended Omnibus Complaint is replete with accounts of
difficulties with prior executions, both in Ohio and in other
states (ECF No. 1252, PageID 45667-45721). This appears to be
in support of something like a Murphy's Law argument: if
something can go wrong, it will.But Murphy's Law is also
not part of the Constitution. An Equal Protection violation
requires an intentional act by a state actor; as Judge Frost
noted earlier in this case, mistakes will happen and they are
not constitutional violations. In re: Ohio Execution
Protocol Litigation, 868 F.Supp.2d 625, 626 (S.D. Ohio
2012). For the reasons given, the two cited past failures are
not plausibly likely to reoccur. The Plaintiffs'
Objections do not quarrel with the Report's conclusion
that no state actor has expressly threatened to repeat what
occurred in the Clark or McGuire execution. And this Court
has not found an equal protection violation since 2012.
allege Defendants will not “continue application of the
lethal drug(s) until Plaintiff is dead.” (4AOC, ECF No.
1252, PageID 45748, ¶ 1377.) In their Objections,
Plaintiffs complain that the Protocol calls for bolus
injections of the three execution drugs, instead of “an
initial injection followed by a continuous infusion.”
(ECF No. 1459, PageID 55470.) This amounts to an argument
that the Fourteenth Amendment constitutionalizes
Plaintiffs' interpretation of the word
A.3: Deviations from the Ohio Constitution
sub-claim A.3, Plaintiffs speculate that the Ohio
Constitution's prohibition on cruel and unusual
punishments “may accord greater civil liberties and
protections to individuals and groups than its federal
counterpart.” (ECF No. 1252, PageID 45749, ¶
1383.) The Report recommended dismissal because
Plaintiffs' Memorandum in Opposition to the Motion to
Dismiss did not mention the Ohio Constitution or any case law
supporting their argument (ECF No. 1429, PageID 55245-46).
object that the Defendants' argument for dismissal of
this claim “solely on the bases of Eleventh Amendment
sovereign immunity and that the Eighth Amendment, not the
Equal Protection Clause, controls the claim.”
(Objections, ECF No. 1459, PageID 55472.) Thus the Magistrate
Judge is said to have raised the recommended basis for
dismissal - insufficient pleading under Twombly/Iqbal --
sua sponte. Id. at PageID 55473.
Magistrate Judge agrees the Report on this sub-claim is too
asserted in the Motion that this sub-claim did not state a
claim upon which relief could be granted under § 1983
because it raised only a speculative claim under Ohio law
(ECF No. 1379, PageID 51940). Upon the authority cited above,
the Equal Protection Clause does not constitutionalize Ohio
law and therefore the citation of Twombly/Iqbal was
appropriate and the lack of sufficient pleading was not
raised sua sponte.
addition, however, Defendants did assert Eleventh Amendment
immunity from liability on this Ohio law claim. As they
noted, the Eleventh Amendment does not bar an action for
injunctive relief against a state officer for violations of
the United States Constitution. Ex parte Young, 209
U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982);
Thomson v. Harmony, 65 F.3d 1314, 1320
(6th Cir. 1995). However, the Amendment does bar
an action to enjoin state officials from violating state law.
Pennhurst State School & Hospital v. Halderman,
465 U.S. 89 (1984); Ernst v. Rising, 427 F.3d 351
(6th Cir. 2005)(en banc); Turker v.
Ohio Dep't of Rehab. & Corr., 157 F.3d 453
(6th Cir. 1998). The Sixth Circuit has applied
that doctrine in this very case. In re: Ohio Execution
Protocol Litig. (Gary Otte), 2017 U.S. App. LEXIS 17436
(6th Cir. Sept. 7, 2017), affirming In re:
Ohio Execution Protocol Litig. (Tibbetts & Otte),
2017 U.S. Dist. LEXIS 115583 (S.D. Ohio July 25, 2017).
Report noted that the claim was also speculative because
Plaintiffs' Memorandum in Opposition lacked any citation
to Ohio law holding the Ohio Constitution created greater
protection against cruel and unusual punishment. Plaintiffs
object, now citing for the first timeIn re C.P., 131 Ohio
St.3d 513 (2012). In that case the Ohio Supreme Court held
that Ohio Revised Code § 2152.86, which required
lifelong sex offender registration for juveniles convicted of
rape, was unconstitutional under both the Eighth Amendment
and Article I, § 9 of the Ohio Constitution.
Id. at ¶¶ 58, 69. In discussing the Ohio
law, Justice Pfeiffer noted that § 9 “provides
protection independent of the protection
provided by the Eighth Amendment.” Id. at
¶ 59 (emphasis supplied). That finding, of course,
shields the judgment in the case from reversal by the United
States Supreme Court under 28 U.S.C. § 1257. In re
C.P. does not hold that the Ohio cruel and unusual
punishment protections are greater than those provided by the
this additional analysis, the Magistrate Judge again
recommends Sub-claim A.3 be dismissed.